Volume. 9 Issue. 11 – March 26, 2025
Post 104 IRB Ongoing for Non-CAT
Last week we discussed a case wherein the Tribunal found that the Applicant was determined to have sustained a CAT impairment, however, was not entitled to post 104 IRB. This week’s case makes the opposite finding, with the Applicant, while entitled to post 104 IRB, was not found to have sustained a CAT impairment. Problematic for the Applicant was the fact that his psychiatric expert failed to adhere to the Criterion 8 Guidelines. After concluding there to be Class 3 Moderate impairments in two domains, the Tribunal did not, in this matter, find it necessary to address the remaining two.
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Impairments not Diagnoses – In 23-002669 v Economical, the Tribunal considers whether the Applicant Abdul-Hussein, injured in a January 2018 MVA, had sustained a CAT impairment, as well as whether there was ongoing entitlement to post 104 IRB. It was the position of Abdul-Hussein that he had sustained Class 4 Marked impairments in all four domains, as his impairment levels significantly impede useful functioning in all four domains. Economical countered that the impairment levels were in fact compatible with some, but not all, useful functioning defined as Class 3 or a moderate impairment in all four domains.
CAT
Diagnoses not Impairments Rated
The Tribunal found that the expert for Abdul-Hussein, Dr. Ross, essentially rated Abdul – Hussein’s diagnoses rather than his impairments. In the introductory Criterion 8 section, it specifically states that the assessor was rating Abdul-Hussein’s condition, being a chronic post-concussion syndrome diagnosis. Dr. Ross specifically states that Abdul – Hussein “would not be capable of living independently without direct supervision as a result of the combination of the applicant’s diagnoses and lists them to include the following: post-concussion syndrome, major neuro-cognitive disorder, chronic pain, depressive disorder, anxiety disorder, and posttraumatic stress disorder.” Dr. Ross concludes with a focus on the applicant’s diagnoses by stating: “When there is a diagnosis of major neurocognitive disorder, it is not expected that an affected individual could live independently without support.”
The report was “further weakened because the report makes a general conclusion regarding the applicant’s activities of daily living without engaging in a Criterion 8 analysis of the applicant’s impairments that would assist me…Since the report instead establishes ratings on the basis of diagnoses rather than impairment I must look to other evidence for my analysis, with little weight given to Dr. Ross’ ratings.”
ADL
The Tribunal afforded more weight to the expert report relied upon by Economical, as it analysed Abdul-Hussein’s specific activities of daily living when providing a Criterion 8 rating. This report concluded that Abdul-Hussein was best rated as having a Class 3 or moderate impairment that is compatible with some but not all useful functioning ADL.
Pre and Post MVA Activities
Prior to the MVA, Abdul-Hussein’s typical workdays would be Monday through Saturday from 11:00 AM to between midnight and 1:00 AM at a family-owned restaurant. His “inclination to enjoy working in social settings was apparent through his testimony about his time at his father’s barbershop, both before and after the accident, his time as a delivery driver at a pizzeria, and his time self-employed at the restaurant owned together with his father.” Following the MVA, he has not returned to studying or to work, having made but one single unsuccessful attempt to return to work at his restaurant in 2018 for approximately 30 minutes, within the first week post MVA.
Abdul-Hussein indicated that he had been encouraged by an occupational therapist to visit his father’s barbershop four days a week for four hours per visit, and he still attends three times a week to socialise, interact and to get out of the house. Surveillance undertaken by Economical evidenced him attending the barbershop upwards of ten hours each day on consecutive days, interacting with customers and staff. Further, he continued attending the gym and swimming post-accident, including taking group classes.
Moderate Impairment Level
Economical’s expert concluded that Abdul-Hussein’s mental health symptoms often prevent him from initiating or sustaining participation in his activities of daily living. The Tribunal noted that while specific instances of impairment further the understanding of the struggles being faced, looking at the overall situation, the level of ADL was compatible with some but not all useful functioning, meeting the definition of a Class 3 or moderate impairment.
Social Functioning
Little Weight Again to Applicant’s Assessor
The Tribunal gave little weight once again to Abdul-Hussein’s assessor, as it “does not engage in any analysis of the social functioning domain from a Criterion 8 perspective as it would relate to the rating. Instead, the report makes a conclusion that the applicant has largely withdrawn from the type of social life that would be expected for his age. The single sentence contained in the social functioning analysis does not state what Dr. Ross’s expectations are about the type of social life the applicant should lead based on his age. This opinion is weakened because I do not have any analysis to assist me in how this conclusion is engaging with the factors outlined in the Guides.”
Tribunal’s View
The Tribunal found that Abdul-Hussein’s capacity to interact was both appropriate and effective with the general public, at the gym including in group classes, or the fast-food restaurant he was observed visiting and with medical professionals and staff at medical appointments. Observations made of Abdul-Hussein engaging with people at his father’s barbershop and at a fast-food restaurant, evidenced his social consideration and awareness. Further, he continued to attend his father’s barbershop and hangs out in the break room three or four times a week although there are times he may go less often or not at all.
Surveillance
Surveillance confirmed back-to-back 10-hour or longer days at the barbershop, during which Abdul-Hussein was seen to be “appropriately engaging and getting along with the barbershop staff and customers. He successfully and independently visited a fast-food restaurant in-person, ordered food, paid for it and picked it up, engaging appropriately with the staff. He was able to recognize someone known to him from the barbershop at the fast-food restaurant while he was there and appropriately greeted and engaged with this person as observed through surveillance.”
Adaptation and Concentration Persistence and Pace?
With respect to Abdul-Hussein’s avoidance or early exit from “hyper” social activities, this was said to in fact relate primarily to other areas of function as a result of becoming overwhelmed. When Abdul-Hussein describes leaving early, “he is describing impairments or deterioration in adaptation and in concentration, persistence and pace resulting from the busy and fast paced environment or setting. Withdrawal and isolation can be signs of impairment in social functioning, however, in the case of the applicant they do not demonstrate a marked impairment in the applicant’s capacity to interact appropriately and communicate effectively with his friends.”
Not CAT
Therefore, given the ratings of Class 3 or moderate impairments in the two domains of activities of daily living and social functioning, Abdul-Hussein could not establish the minimum of three Class 4 or marked impairment ratings required to meet the definition of CAT under Criterion 8. The Tribunal opted not in this instance to consider the remaining two domains of concentration, persistence, and pace, or adaptation.
IRB
Applicant’s Expert vs. Respondent’s
Abdul-Hussein’s expert opined in 2023 that he would be unable to sustain any form of productive employment for the foreseeable future. Further, in 2024, the expert opined after reviewing additional information and surveillance, that his opinions remained unchanged as the updated clinical records and surveillance reviewed did not show Abdul-Hussein engaging in any productive work and that he continues to suffer from chronic pain in addition to his mental and behavioral impairments. The Tribunal gave more weight to Abdul-Hussein’s evidence that he cannot currently work as this opinion is shared by his expert as well as his family doctor, who described Abdul-Hussein as genuine, someone looking for ways to get and feel better. It was further noted that the earlier Criterion 8 analysis provided evidence of impairments in concentration and adaptability.
The experts for Economical comment on the physical injuries was that, as 4 years had passed “his physical injuries would have fully healed long ago. While the applicant’s complaints are mentioned there is not sufficient engagement with the applicant’s chronic pain.”
Entitled to IRB
The Tribunal concluded that Abdul-Hussein’s “time spent and task engagement at his father’s barbershop is analogous to casual or noncommitted volunteer work and should not be seen as productive employment…there is no payment or responsibility because the applicant is freely accommodated without any expectations placed on him…the applicant cannot be seen to have work-related responsibilities at his father’s barbershop nor is he required to attend.” Accordingly, “on a balance of probabilities, I find that the combination of mental and behavioral and physical impairments suffered by the applicant result in a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.”
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